On the 1st of September, 2017 the Supreme Court of Kenya annulled the Presidential election held on the 8th of August 2017 and ordered a re-run within 60 days. The ruling was made as a result of a petition by the leader of the opposition, Raila Odinga, in which he sought nullification of the results of the elections on the basis that it was marred by breaches of the law and many irregularities.

In annulling the elections, the court per, Maraga CJ writing the majority judgment in 4 - 2 decision said: "Taking the totality of the entire evidence, we are satisfied that the elections were not conducted in accordance to the dictates of the constitution".

In its ruling the court emphasised that the re-run be conducted " in conformity with the Constitution and the applicable laws". In so holding the court affirmed that the credibility of the Kenyan elections would be judged by the extent to which they comply with constitutional principles.

The above decision was a significant departure from the much criticised “substantive effect” test, in which courts in Africa, in dealing with election petitions, have focused on the question of whether, the irregularities complained of, affected the results of the elections.

This was the first decision of its kind in Africa. For the first time in Africa's quest for democratisation, a court has asserted the centrality of the Rule of Law in a democracy by ordering a re-run in a presidential election.

Initially, President Kenyatta, although unhappy with the decision of the court, indicated that he would respect the decision, but subsequently he started casting aspersions on the judges in a manner that suggested he did not respect the decision, even threatening the judges. This is not acceptable. In 2013 the same Court in a similar election petition ruled in his favour and he called upon the nation to respect the decision of the court. The same words of wisdom are applicable with respect to the 2017 election petition.

Leaders must lead by example and not encourage the citizenry to take the law into their own hands by disrespecting court decisions and undermining the Judiciary.

The Rule of Law lies at the heart of any democratic society. The court's decision has secured Kenya's place in the community of civilised nations in which the Constitution is supreme and no one is above the law, no matter their position or how powerful.  It underscores the importance of strong independent institutions in any democratic society composed of men and women of integrity.

VANJA KARTH
DIRECTOR
JUDICIAL INSTITUTE FOR AFRICA